R. v. Day, 2016 NLCA 52

Ryan William Day (appellant) v. Her Majesty the Queen(respondent) (16/26) Indexed As: R. v. Day 2016 NLCA 52 1 C.A.N.L.R. 96 Court of Appeal of Newfoundland and Labrador Rowe, Barry and Harrington JJ.A. October 5, 2016

Summary: The appellant appealed his conviction for trafficking marihuana and sentence of 5 months’ imprisonment, probation and ancillary orders. Held: Appeal against conviction dismissed, appeal against sentence dismissed. Rowe J.A. (Barry and Harrington JJ.A. concurring): In the conviction appeal, the appellant argued that the trial judge misapplied the rulein Hodge’s Case (1838), (FOREP), 2 Lewin 227, 168 E.R. 1136 in dealing with what was a circumstantial case.

Theappellant argued that guilt was not the only reasonable inference from the circumstantial evidence, because it was possible that othersowned the drugs found in the appellant’s car. The trial judge methodically examined the possibility that another person owned the drugs but found that the suggestion by Mr. Day thatsomeone else owned the drugs did not give rise to a reasonable doubt. This was not an error and the conviction appeal was dismissed.

In the sentence appeal, the appellant argued that the sentencing judge erred by over-emphasizing deterrence and under-emphasizingrehabilitation, by treating the baseball bat in the trunk of the car as an aggravating factor and that the sentence was unfit. There was no indication in the judge’s reasons that he over-emphasized deterrence. The sentencing judge expressly stated that he foundbeyond a reasonable doubt that the bat was in the trunk so that it could be used as a weapon to inflict or threaten violence as part ofdealing drugs. There was no error in this conclusion.

The judge also reviewed relevant sentencing decisions and imposed a sentence thatwas within the range of such decisions. The sentence was not unfit. There was no error in the sentencing decision and the sentenceappeal was dismissed. Cases cited: Hodge’s Case (1838), (FOREP), 2 Lewin 227, 168 E.R. 1136 R. v. Villaroman, 2016 SCC 33 R. v. Provost, 2006 NLCA 30, 256 Nfld. & P.E.I.R. 205 R. v. McNeil, 2013 NLCA 52, 340 Nfld. & P.E.I.R. 42 Counsel: Stephen Orr, for the appellant; Andrew Brown, for the respondent.

This appeal was heard on September 19, 2016 before Rowe, Barry and Harrington JJ.A. The following judgment was delivered on October 5, 2016 by Rowe J.A. for the Court. ______________________________________________________________ Rowe J.A.: FACTS [1] The Crown accurately summarized the facts in its factum: On October 18, 2011 the Royal Canadian Mounted Police watched the Appellant as he drove from his residence on Canada Drive,stopped at a convenience store, and then continued downtown, where he got out of his car.

The officers arrested the Appellant after hereturned to his car in the company of two women, one of whom appears to have been his girlfriend, Romance. The police seized cellphones from the Appellant and searched the car he was driving, locating, among other items, 1 pound of marihuana in a gym bag fromthe trunk, in close proximity to a baseball bat and documents in the Appellant’s name. A forensic search of the Appellant’s iPhonerevealed numerous text messages, which an expert witness testified indicated that the Appellant was engaged in a protracted course ofmarihuana trafficking and related money collection.

During his trial, the Appellant testified that he did not know how the marihuana came to be in his trunk. The Appellant’s defence andtestimony alleged three main alternatives to explain who had put the drugs in the trunk: first, his mother, father or sister, with whom heshared the car; second, his roommate, Colin Escott, an alleged drug trafficker; third, his then girlfriend, a stripper going by the nameRomance, who was in the car when he was arrested. The Appellant denied ever selling drugs.

The trial judge found that the Appellant’s limited explanations of the text messages in cross examination did not hold up, and that theAppellant was a drug trafficker who was not careful over the phone. As to the implication that Mr. Day’s family members might have left the drugs in the car, the Appellant’s mother testified that only theAppellant had any connection to illegal drugs. The Appellant’s testimony did not raise any allegation of his family’s involvement with marihuana, and this line of defence was pursued only in passing. As to Mr.

Escott, the trial judge found it incredible that anyone would leave such a valuable commodity in a car that he did not own,control, or could even be sure was secure. As to Romance covertly placing the drugs in the car, the police did not observe it during their surveillance and the trial judge found thatthe Appellant’s story was “bizarre”. The Appellant had shouted to Romance and her friend not to say anything following the Appellant’sarrest. Text messages between the Appellant and Romance discussed the price of pounds of marihuana.

In another series of textmessages shortly before the arrest date, Romance told the Appellant that, “…the bags you gave me are done,” and the Appellant replied,“Don’t worry, I’ve got you”; the trial judge rejected the Appellant’s explanation that the exchange was about groceries, and found that itwas inconsistent with Romance covertly placing cannabis in the car. Based on all of the evidence the trial judge concluded that the Appellant was aware that the drugs were in his car and that he intended totraffic them.

The trial judge sentenced the Appellant to 5 months’ imprisonment in a correctional facility, exercising his discretion in line with theAppellant’s specific request that any period of imprisonment not be served as a conditional sentence. The trial judge also imposed aperiod of probation and ancillary DNA, forfeiture and weapons prohibition orders, as well as 12 months’ probation. ISSUES [2] Mr. Day appeals his conviction and, in the alternative, his sentence. The following issues arise:

(1) Did the trial judge err in law by misapplying the circumstantial evidence test (the rule in Hodge’s Case)?

(2) Did the trial judge err in imposing sentence by over-emphasizing deterrence and under-emphasizing rehabilitation?

(3) Did the sentence judge err by relying on an aggravating factor not proven beyond a reasonable doubt, i.e. that the baseball bat was inMr. Day’s trunk so that it could be used as a weapon?

(4) Did the sentencing judge err by imposing a sentence that was demonstrably unfit by virtue of being above the ordinary sentencingrange in the circumstances of this case? ANALYSIS: CONVICTION [3] Counsel for Mr. Day argued that the trial judge misapplied the rule in Hodge’s Case (1838), (FOREP), 2 Lewin227, 168 E.R. 1136. The Supreme Court of Canada dealt with the rule in Hodge’s Case in R. v. Villaroman, 2016 SCC 33. The Courtheld at paragraphs 55-56 that, where the Crown’s case is based on circumstantial evidence, the test is whether the trier of fact, acting

judicially, could reasonably be satisfied that the accused’s guilt was the only conclusion available on the totality of the evidence. The circumstantial evidence does not have to exclude entirely other conceivable inferences, but rather such alternatives must not raise a reasonable doubt. [ 4 ] Counsel for Mr. Day argued three possible alternatives as to who owned the drugs: (

a) Mr. Escott, (

b) Ms. Romance, or (

c) a member of Mr. Day’s family. [ 5 ] In his analysis, the trial judge methodically examined the possibility that Mr. Escott, Ms. Romance or a member of Mr. Day’s family owned the drugs. The trial judge found that none of the three was plausible as owner of the drugs, i.e. the suggestion by Mr. Day that someone else owned the drugs did not give rise to a reasonable doubt. The trial judge concluded the only plausible explanation was that the drugs were Mr. Day’s. In support of this were many text messages that indicated that Mr. Day was dealing in drugs in quantities consistent with the drugs found in his car.

Accordingly, he convicted Mr. Day. In so doing, the trial judge did not err; rather, he properly applied the rule in Hodge ’s Case (albeit he did not refer to the rule) and, more generally, properly applied the test of proof beyond a reasonable doubt. Thus, Mr. Day’s appeal against conviction is dismissed. ANALYSIS: SENTENCE [ 6 ] Counsel for Mr. Day says that the sentencing judge erred by over-emphasizing deterrence and under-emphasizing rehabilitation. A close reading of the judge’s sentencing reasons discloses that he considered both these sentence goals, among others.

There is nothing to indicate an over-emphasis or under-emphasis that would constitute error. [ 7 ] Counsel for Mr. Day says that the judge erred by treating the baseball bat in the trunk of the car as an aggravating factor. The presence of the bat is undisputed. In order for it to be an aggravating factor, the sentencing judge had to be persuaded beyond a reasonable doubt that the bat was in the trunk so that it could be used as a weapon to inflict or threaten violence as part of dealing drugs.

The sentencing judge expressly stated that he so found, having rejected as implausible the suggestion that the bat was there so that Mr. Day could hit baseballs. I see no error in the judge’s analysis. [ 8 ] Counsel for Mr. Day says that five months incarceration exceeded the ordinary sentencing range for trafficking in this quantity of marijuana by a young, first offender with good prospects for rehabilitation. I cannot agree. The judge reviewed relevant sentencing decisions and imposed a sentence that was within the range of such decisions. See, inter alia , R. v.

Provost , 2006 NLCA 30 , 256 Nfld. & P.E.I.R. 205 , at paras. 21-27 and R. v. McNeil , 2013 NLCA 52 , 340 Nfld. & P.E.I.R. 42 , at paras. 39 and 50 . Nor can it be said that a five month sentence was so severe as to be demonstrably unfit. Accordingly, there is no basis for this Court to interfere with the judge’s exercise of discretion in imposing sentence. [ 9 ] The appeal against sentence is dismissed. CONCLUSION [ 10 ] The appeal against conviction is dismissed. The appeal against sentence is dismissed. Appeal dismissed .